11. CRIMINAL DIVISION – SENTENCING
             11.1   Sentencing principles & sentencing orders
                    11.1.1 Sentencing models
                    11.1.2 Sentencing of adults
                    11.1.3 Sentencing of children
                    11.1.4 Some general sentencing principles
                          11.1.4.1 General deterrence is not applicable as a sentencing principle in ChCV
                          11.1.4.2 Powers of the Supreme Court and County Court in sentencing a child
                          11.1.4.3 Principle of Proportionality – Relevance of other convictions
                          11.1.4.4 Principle of Totality
                          11.1.4.5 Community correction orders under Part 3A of the Sentencing Act 1991
                    11.1.5 Sentencing orders – Sentencing hierarchy
                    11.1.6 The community supervisory orders detailed and compared
                    11.1.7 Power to impose an aggregate sentence of YRC/YJC detention under the CYFA
                    11.1.8 Restitution/Compensation/Costs
                    11.1.9 Additional orders including disqualification & forfeiture
                          11.1.9.1 Disqualification
                          11.1.9.2 Incompatibilty of diversion and licence cancellation/suspension
                          11.1.9.3 Forfeiture and other orders
                    11.1.10 Struck out
                    11.1.11 Children’s Court has no direct power to impose community work/service
                    11.1.12 Order for forensic procedure on finding of guilt
                    11.1.13 Sentencing of children for Commonwealth offences
                    11.1.14 Sentencing powers of Supreme Court or County Court
                    11.1.15 Relevance to sentencing of agreement between Crown and defence
                    11.1.16 Procedural fairness
                    11.1.17 Relevance of United Nations Convention on the Rights of the Child
                    11.1.18 Sentencing for conspiracy compared with sentencing for completed offence
                    11.1.19 Offending in a custodial setting is a relevant sentencing consideration
                    11.1.20 Vigilantism
             11.2   Selected cases on sentencing
                    11.2.1 Young adults & children sentenced under the Sentencing Act
                    11.2.2 Children and young persons sentenced under the CYPA & CYFA
                    11.2.3 Sentencing hierarchy
                    11.2.4 Factual basis of sentencing – Relevance of uncharged acts
                    11.2.5 Purpose of a Youth Justice Centre sentence [formerly YTC]
                    11.2.6 Parity of sentencing
                    11.2.7 Double jeopardy
                    11.2.8 Effect of guilty plea, remorse, admission of offence, assistance to authorities
                          11.2.8.1 Remorse
                          11.2.8.2 Discount for guilty plea and/or admission of offence
                          11.2.8.3 Assistance to authorities (Informer’s discount)
                          11.2.8.4 Undertaking to give evidence against co-accused
                    11.2.9 Relevance of risk to offender’s safety while in custody /
                          Relevance of protective custody
                    11.2.10 Effect of forgiveness by the victim
                    11.2.11 Effect of mental illness / mental disorder / intellectual disability
                          11.2.11.1 Cases prior to R v Verdins (2007) 16 VR 269
                          11.2.11.2 R v Verdins (2007) 16 VR 269 & later cases
                          11.2.11.3 Effect of intellectual disability
                          11.2.11.4 Effect of personality disorder
                    11.2.12 Effect of deprived/disadvantaged background
                    11.2.13 Effect of ill health and/or age
                    11.2.14 Effect of delay
                    11.2.15 Relevance of gambling addiction
                    11.2.16 Relevance of drug addiction
                    11.2.17 Relevance of intoxication
                    11.2.18 Relevance of hardship on offender's family
                    11.2.19 Relevance of Aboriginality
                    11.2.20 Relevance of recall or risk of recall by Parole Board
             Produced by former Magistrate Peter Power for the Children's Court of Victoria
             Last updated 04 March 2022                                             11.1
                    11.2.21 Relevance of likely forfeiture under the Confiscation Act
                    11.2.22 Sentencing for manslaughter / defensive homicide / attempted murder / murder
                          11.2.22.1 Sentencing for manslaughter
                          11.2.22.2 Sentencing for defensive homicide [now abolished]
                          11.2.22.3 Sentencing for attempted murder
                          11.2.22.4 Sentencing for murder
                          11.2.22.5 Sentencing for statutory murder
                          11.2.22.6 Sentencing for being accessory to murder
                    11.2.23 Sentencing for culpable driving / dangerous driving causing death/serious inj.
                    11.2.24 Sentencing for intentionally / recklessly / negligently causing serious injury, 
                          intentionally / recklessly causing injury, affray/riot & reckless endangerment
                          11.2.24.1 Sentencing for intentionally causing serious injury / intentionally 
                          causing serious injury in circumstances of gross violence
                          11.2.24.2 Sentencing for recklessly causing serious injury
                          11.2.24.3 Sentencing for negligently causing serious injury
                          11.2.24.4 Sentencing for intentionally causing injury / recklessly causing injury
                          11.2.24.5 Sentencing for affray/riot
                          11.2.24.6 Sentencing for reckless endangerment / recklessly exposing 
                          emergency worker to risk by driving
                    11.2.25 Sentencing for drug trafficking / cultivation / importation etc
                    11.2.26 Sentencing for armed robbery / robbery / agg carjacking / carjacking
                          11.2.26.1 Sentencing for armed robbery / robbery
                          11.2.26.2 Sentencing for aggravated carjacking / carjacking
                    11.2.27 Sentencing for burglary / agg burglary / home invasion / agg home invasion
                    11.2.28 Sentencing for rape / other sexual offences
                          11.2.28.1 Sentencing for rape
                          11.2.28.2 Setencing for other sexual offences
                    11.2.29 Sentencing for offences against the person committed on public transport
                    11.2.30 Sentencing for attempting to pervert the course of justice
                    11.2.31 Sentencing for property damage
                    11.2.32 Sentencing for child homicide
                    11.2.33 Sentencing for terrorism offence
                    11.2.34 Sentencing for firearms offences: importation
                    11.2.35 Sentencing for theft and theft of motor vehicle compared
                    11.2.36 Sentencing for offences involving family violence
                          11.2.36.1 Sentencing considerations for contravention of an intervention order
                          11.2.36.2 Some relevant cases
             11.3   Some mechanics of sentencing
                    11.3.1 “Instinctive synthesis” or “two-tiered approach”
                    11.3.2 Use of sentencing statistics and sentencing snapshots
                    11.3.3 The Sex Offenders Registration Act 2004 and its relevance to sentencing
                    11.3.4 Power to direct time held in detention before trial be reckoned as already served
                    11.3.5 Exercise of mercy
                    11.3.6 Conviction or non-conviction
                    11.3.7 Effect of an injury sustained by offender while committing a crime
                    11.3.8 Effect of the COVID-19 pandemic on sentencing
             11.4   Material admissible in sentencing hearings under the CYFA
                    11.4.1 Pre-sentence & group conference reports
                    11.4.2 Report, submission & evidence on behalf of child
                    11.4.3 Prior finding of guilt
                    11.4.4 Prosecutor’s submissions & duty
                    11.4.5 Victim impact statements
             11.5   Deferral of sentencing
             11.6   Group conference
                    11.6.1 Restorative justice
                    11.6.2 The Victorian Group Conference program
                    11.6.3 Goal
                    11.6.4 Consultation with Youth Justice
                    11.6.5 Mechanics
                    11.6.6 Conference Outcomes
             Produced by former Magistrate Peter Power for the Children's Court of Victoria
             Last updated 04 March 2022                                             11.2
             11.7   Criminal Division Statistics
                    11.7.1 Victorian statistics
                    11.7.2 Australian & world statistics
             11.8   Parole & Remissions
                    11.8.1 Parole
                    11.8.2 Remissions
             11.9   Temporary leave from detention
             11.10 Transfers between custodial institutions
             11.11 Further custodial sentence imposed on detainee
             11.12 Breach of sentencing orders made under the CYFA
                    11.12.1 “Generic” provisions governing commencement, hearing and transfer of breach
                          proceedings
                    11.12.2 Powers upon proof of breach of CYFA sentencing order (other than YCO & fine
                          default)
                    11.12.3 Revocation of YCO and consequences thereof
                    11.12.4 Fine defaults
             11.13 Sunset provision for Children's Court priors
             11.14 The MAPPS Program
             11.15 Sentencing of adults for child abuse
                    11.15.1 Sexual abuse
                          11.15.1.1 Sexual abuse in a family setting
                          11.15.1.2 Sexual abuse by a person in authority
                    11.15.2 Use of the internet to procure sex
                    11.15.3 Possession/production/transmission of child pornography
                    11.15.4 Other sexual offending against children
                    11.15.5 Relevance of consent in sentencing for unlawful sexual activity with a child
                    11.15.6 Physical abuse
                    11.15.7 Causing death
             11.16 Sentencing for child sexual abuse committed as a child
             11.17 Sentencing of adults for offence against protective worker
             11.18 Relevance of prospect of deportation
             11.19 The ‘standard sentence’ scheme
             11.20  Alcohol exclusion orders
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             Produced by former Magistrate Peter Power for the Children's Court of Victoria
             Last updated 04 March 2022                                             11.3
                  UNLESS INDICATED OTHERWISE, ALL LEGISLATION REFERRED TO IS VICTORIAN.
                 11.1 Sentencing principles & sentencing orders
                 "Juveniles are less mature - less able to form moral judgments, less capable of controlling
                 impulses, less aware of the consequences of acts, in short they are less responsible and
                 therefore less blameworthy than adults.   Their diminished responsibility means that they
                 'deserve' a lesser punishment than an adult who commits the same crime…Lesser punishment
                 means not only more sparing use of detention but it also means significantly shorter terms of
                 detention, bonds and periods of licence disqualification, because time has a wholly different
                 dimension for children than it does for adults."
                                             Judge Newman (South Australian Youth Court)
                             South Australian Youth Court Advisory Committee, Annual Report 1983, pp.6-7
                 "The risk that a period of detention will be counter-productive for an offender – and hence for
                 the community – is never higher than in relation to a young offender who has not previously
                 been in custody.  Research to which the Chief Scientist of New Zealand has recently drawn
                 attention  has highlighted the potential for the immature brain to respond to punitive
                 punishments in such a way as to make recidivism more rather than less likely."
                       Victorian Court of Appeal in CNK v The Queen (2011) 32 VR 641; [2011] VSCA 228 at [77]
                 per Maxwell P, Harper JA & Lasry AJA citing Laurence Steinberg, ‘Adolescent Development and
                 Juvenile Justice’ (2009)  Annual Review of Clinical Psychology  47, 65–68, cited in  Improving the
                 Transition:   Reducing Social and Psychological Morbidity During Adolescence, Report to Prime
                 Minister of New Zealand by Chief Scientific Advisor (May 2011), 28.
                 "[S]entencing is not a process that leads to a single correct answer arrived at by some process
                 admitting of mathematical precision.”
                      High Court of Australia in Pearce v The Queen (1998) 194 CLR 610, 624 per McHugh, Hayne
                              & Callinan JJ cited with approval in DPP v Yeomans [2011] VSCA 277 at [66]
                 Only a small percentage of offences involving accused children are contested and a significant
                 proportion of these are found proved in any event.  It follows that the major task for a judge or
                 magistrate in the Criminal Division of the Children’s Court is the sentencing of juvenile offenders.
                 In R v Lanteri [2006] VSC 225 at [6] Gillard J explained the sentencing process for adult offenders:
                       “My task is to determine the facts and, applying the principles of sentencing law, to
                       determine in the exercise of my discretion, what is a proportionate and appropriate
                       sentence in all the circumstances.  In relation to the sentencing process, I refer to what the
                       Court of Appeal said in R v Storey [1998] 1 VR 359 at 366:
                             “Sentencing is not a mechanical process.   It requires the exercise of a
                             discretion.  There is no single ‘right’ answer which can be determined by the
                             application of principle.  Different minds will attribute different weight to various
                             facts in arriving at the ‘instinctive synthesis’ which takes account of the various
                             purposes for which sentences are imposed - just punishment, deterrence,
                             rehabilitation, denunciation, protection of the community - and which pays due
                             regard to the principles of totality, parity, parsimony, and the like.”
                 The process for sentencing juvenile offenders is the same although the weight given by the sentencing
                 judge to the various factors involved in the ‘instinctive synthesis’ is likely to be quite different in most
                 juvenile cases.
                 11.1.1 Sentencing models
                 There are two sentencing models which, in one combination or another, underpin the sentencing of
                 persons, whether adult or juvenile, in most jurisdictions.  In his Keynote Address at the Youth Justice
                 Conference in September 2000: "Managing a New World in Transit", the Chief Justice of Singapore
                 said of these models in relation to youth sentencing:
                                                                                                    th
                       "National responses in many countries to youth offending throughout the 20  century have
                       fluctuated between the 'welfare' and the 'justice' models: broadly whether young offenders
                       are seen as being primarily in need of care and rehabilitation, or deserving of correction or
                       punishment.  Both approaches have received their share of criticism."
                 Produced by former Magistrate Peter Power for the Children's Court of Victoria
                 Last updated 04 March 2022                                                                  11.4